MCCATTY v. STALLION EXPRESS LLC LLC (2025)

ORDER

By Order of Reference dated November 5, 2024, pursuant to 28 U.S.C. § 636(b)(1)(A) (Docket #46), this matter was referred to me for a ruling on Defendant Stallion Express, LLC's motion to dismiss and compel arbitration or, in the alternative, to stay proceedings pending arbitration (Docket #28).¹ Plaintiff Maxwell McCatty has filed an opposition (Docket #32) to which Stallion has replied (Docket #43). This matter is now ripe for adjudication. For the reasons that follow, the motion to compel arbitration (Docket #28) is hereby ALLOWED.

I. BACKGROUND 2

On October 19, 2020, Pharmscript and Stallion Express LLC entered into a Service Agreement pursuant to which Pharmscript, which operates numerous pharmacies, engaged Stallion to provide pharmaceutical courier services. (Docket #26-2 at 2-3). McCatty worked as a courier for Stallion Express, LLC from March 2018 through August 2022 out of Marlborough, Massachusetts. (Id. at ¶ 7; Docket #32-2 at ¶ 1). McCatty made trips for Stallion every day that he worked (generally five to seven days a week), transporting pharmaceutical and medical products from Pharmscript pharmacies to nursing facilities throughout Massachusetts and interstate trips to a nursing facility in Nashua, New Hampshire. (Docket #1 at ¶ 1; Docket #17-1 at 18; Docket #32-2 at ¶¶ 2-3).

On January 29, 2024, McCatty filed a putative collective and class action complaint alleging that he was improperly classified as an independent contractor and should have been classified as an employee of both Stallion and Pharmscript. (Docket #1). This alleged misclassification is the basis of his various wage claims brought under the Fair Labor Standards Act as well as Massachusetts state law. (Id. at ¶¶ 54-58).

Stallion is a shipper agent that connects long term care pharmacies to vendors that deliver pharmaceutical products sold by those pharmacies to nursing facilities. (Docket #28 at 20). Through Stallion, nursing facilities place ad hoc orders with pharmacies for prescription drugs and medications. (Id.). The pharmacies prepare these orders by utilizing their bulk inventory. (Id.). Stallion arranges for couriers to deliver the prescription drugs from local pharmacies to local nursing facilities. (Id.).

On January 6, 2021, McCatty entered a Carrier TPA Services Agreement (“Services Agreement”) with a third-party administrator, Openforce. (Id. at 25). The Carrier TPA Services Agreement establishes the relationship between the carrier and Openforce, after which Openforce may refer the carrier to any business with which it contracts, including Stallion. (Id. at 21, 26-27). In the course of executing and agreeing to the Services Agreement, McCatty also executed an Arbitration Agreement attached as Schedule B to the Services Agreement (“Arbitration Agreement”). (Id. at 44-47).

On April 12, 2024, Stallion filed the instant motion seeking to dismiss McCatty's collective and class action complaint in favor of arbitration arguing that Stallion is an intended third-party beneficiary of the Arbitration Agreement. (Docket #28).

II. STANDARD OF REVIEW

The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., provides that agreements to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA embodies a “liberal federal policy favoring arbitration.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (internal citations and quotations omitted). That policy requires “ambiguities as to the scope of the arbitration clause itself [to be] resolved in favor of arbitration.” Ouadani v. TF Final Mile LLC, 876 F.3d 31, 36 (1st Cir. 2017) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)) (alterations in original). A party seeking to compel arbitration “must show [1] that a valid agreement to arbitrate exists, [2] that the movant is entitled to invoke the arbitration clause, [3] that the other party is bound by that clause, and [4] that the claim asserted comes within the clause's scope.” InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003).

III. ANALYSIS

Despite the broad scope of the FAA, section 1 of the FAA excludes from the FAA's coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”³ 9 U.S.C. § 1. The Supreme Court has interpreted the residual clause of this exemption to apply only to “transportation workers,” meaning workers who “play a direct and necessary role” in the interstate movement of persons or goods. Sw. Airlines Co. v. Saxon, 596 U.S. 450, 458, 142 S.Ct. 1783, 213 L.Ed.2d 27 (2022) (quotation omitted). McCatty argues that he cannot be compelled to arbitrate because he is a member of a class of transportation workers engaged in interstate commerce and is therefore exempt from the statute.⁴ (Docket #32 at 1). As the party seeking to avoid arbitration, McCatty bears the burden of proving that this exemption applies. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).

A. Claim Preclusion

As an initial matter, Stallion asserts that this court is bound to compel arbitration of McCatty's claims under the principles of res judicata. (Docket #28 at 16). “The doctrine of res judicata rests upon the bedrock principle that, for claim preclusion to apply, a litigant first must have had a full and fair opportunity to litigate his claim.” Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 (1st Cir. 1994). “[C]laim preclusion prevents parties from raising issues that could have been raised and decided in a prior action – even if they were not actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 590 U.S. 405, 412, 140 S.Ct. 1589, 206 L.Ed.2d 893 (2020). “The essential elements of claim preclusion are (1) a final judgment on the merits in an earlier action; (2) an identity of the cause of action in both the earlier and later suits; and (3) an identity of parties or privies in the two suits.” Benenson v. Comm'r, 887 F.3d 511, 516 (1st Cir. 2018) (quoting Kale v. Combined Ins. Co. of Am., 924 F.2d 1161, 1165 (1st Cir. 1991)). As the party raising the defense, Stallion bears the burden of establishing all necessary elements of claim preclusion. Taylor v. Sturgell, 553 U.S. 880, 907, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008).

Stallion argues that McCatty is barred from asserting that he is exempt under section 1 as this argument could have been raised and decided by the court in Gagne v. Stallion Express, LLC, No. 4:22-cv-40008-TSH, 2022 WL 17658121, 2022 U.S. Dist. LEXIS 227103 (D. Mass. Sept. 15, 2022). (Docket #28 at 17). Gagne was brought on behalf the same alleged class/collective, involved the same arbitration agreement, and raised the same factual allegations. Id. at *2. However, in Gagne, the plaintiff did not argue that she was exempt from the FAA under section 1. While McCatty was not a named plaintiff in Gagne, Stallion asserts that he is barred from raising the section 1 exemption because there was substantial identity between him and the Gagne plaintiff. (Docket #28 at 16).

“ ‘[I]n certain limited circumstances,’ a nonparty may be bound by a judgment because she was ‘adequately represented by someone with the same interests who was a party’ to the suit.” Taylor, 553 U.S. at 894, 128 S.Ct. 2161 (quoting Richards v. Jefferson County, 517 U.S. 793, 798, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996)) (internal alterations omitted). “Representative suits with preclusive effect on nonparties include properly conducted class actions.” Id. “A party's representation of a nonparty is ‘adequate’ for preclusion purposes only if, at a minimum: (1) The interests of the nonparty and her representative are aligned; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interest of the nonparty.” Id. at 900, 128 S.Ct. 2161. “In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented.” Id. “In the class action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23.” Id. at 900-01, 128 S.Ct. 2161. However, “[n]either a proposed class action nor a rejected class action may bind nonparties.” Smith v. Bayer Corp., 564 U.S. 299, 315, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011).

In Gagne, the court granted the defendant's motion to dismiss and compel arbitration before the class certification issue was briefed. Hence, claim preclusion is not applicable here.

B. Exemption from the Federal Arbitration Act

To determine whether McCatty is an exempt transportation worker under section 1, the court must first define the relevant “class of workers” to which McCatty belongs, and then “determine whether that class of workers is ‘engaged in foreign or interstate commerce.’ ” Sw. Airlines, 596 U.S. at 455, 142 S.Ct. 1783 (quoting 9 U.S.C. § 1).

“A ‘class of workers’ is defined by the ‘actual work’ that those workers typically do on a job, not necessarily by the industry in which they work.” Immediato v. Postmates, Inc., 54 F.4th 67, 74 (1st Cir. 2022) (quoting Sw. Airlines, 596 U.S. at 456, 142 S.Ct. 1783). Here, McCatty belongs to a class of couriers whom Stallion connected with pharmacies to deliver pharmaceutical products to nursing facilities. (Docket #28 at 20).

Having defined the relevant class of workers, the court must next ascertain whether that class “engaged in foreign or interstate commerce.” Sw. Airlines, 596 U.S. at 455, 142 S.Ct. 1783 (quoting 9 U.S.C. § 1). For purposes of section 1, “engaged in commerce” extends only to those “workers who are ‘actively’ engaged in moving ‘goods across borders via the channels of foreign or interstate commerce.’ ” Immediato, 54 F.4th at 74 (quoting Sw. Airlines, 596 U.S. at 458, 142 S.Ct. 1783). The First Circuit has recognized three categories of workers who could potentially be engaged in interstate commerce under section 1:

(1) “workers who themselves carried goods across state lines;” (2) workers “who transported goods or passengers that were moving interstate,” “even if the worker's role in transporting the goods occurred entirely within a single state;” and (3) workers “who were not involved in transport themselves but were in positions so closely related to interstate transportation as to be practically a part of it.”

Fraga v. Premium Retail Servs., 61 F.4th 228, 237 (1st Cir. 2023) (quoting Waithaka v. Amazon.com, Inc., 966 F.3d 10, 20 (1st Cir. 2020)). McCatty asserts that the Stallion couriers were engaged in interstate commerce under both the first and second categories. The court will address these arguments in turn.

1. Workers Who Themselves Carry Goods Across State Lines

In determining whether McCatty has demonstrated that he is among a class of workers who themselves carried goods across state lines, the court looks not to McCatty personally but to the class to which he belongs as a whole. See Cunningham v. Lyft, Inc., 17 F.4th 244, 252 (1st Cir. 2021). Stallion asserts that the couriers do not engage in interstate commerce under section 1 because only a small percentage of its couriers crossed state lines and those who did only did so infrequently. (Docket #28 at 15).

In Cunningham v. Lyft, Inc., the First Circuit addressed the issue of whether a class of workers would qualify under section 1 if “many but not all of the workers cross states lines on a very small percentage of their trips.” 17 F.4th at 252. The First Circuit determined that the two percent of Lyft rides that crossed state lines was insufficient to establish that the Lyft drivers were “primarily devoted to the movement of goods and people beyond state boundaries” as required by the section 1 exemption. Id. at 253. Conversely, in Fraga v. Premium Retail Services, the First Circuit noted that work performed two or more hours every day (presumably twenty-five percent of a workday) would seem to be work that was performed frequently by any measure. 61 F.4th at 237 (noting that district court may address plaintiff's argument on remand that the class of workers at issue satisfied the interstate commerce element of the section 1 exemption because they themselves sometimes drove across state lines once, it determined how many of the class of workers made such trips and how often they did so).

McCatty has submitted his own affidavit as well as those of seven other Stallion couriers. (Docket #32-2-9). Three couriers who delivered products from the Marlborough, Massachusetts Pharmscript location aver they regularly made deliveries to New Hampshire and that other couriers transported pharmaceutical products from Massachusetts to Rhode Island and Connecticut. (Docket #32-2-5). Additionally, during the relevant time period, Stallion had a set route that transported products from Massachusetts to New Hampshire three times per day.⁵ (Docket #32-4). At the Maryland Pharmscript location, more than twenty-five Stallion couriers transported pharmaceuticals from Maryland to neighboring states and at least three couriers did so on a daily basis.⁶ (Docket #32-6-8). The Somerset, New Jersey Pharmscript location used at least eighty to one hundred Stallion couriers to transport products. (Docket #32-9). Of these couriers, more than seventy had transported products from New Jersey to interstate locations including Pennsylvania, New York, Connecticut, Delaware, and Virginia daily. (Docket #32-9). However, a review Stallion conducted of all deliveries for which Stallion connected a courier with one of its pharmacy customers during June of 2022 revealed that less than ten percent of deliveries crossed a state line after leaving a pharmacy.⁷ (Docket #28 at 21). The percentage of couriers who crossed state lines was less than that, since interstate deliveries were typically part of the same delivery route, delivered by the same courier on the same day. (Id.). Additionally, any route that crossed state lines would typically begin with in-state deliveries; hence, any interstate deliveries would constitute only a portion of each route. (Id.).

The evidence submitted in this case shows a frequency of interstate deliveries higher than that of the Lyft drivers in Cunningham but less than what the First Circuit stated in Fraga would clearly be found frequent. In determining whether this frequency of interstate deliveries would qualify as sufficient to show that the class of workers to which McCatty belongs is primarily devoted to the movement of people and goods beyond state boundaries, this court finds the Third Circuit's opinion in Singh v. Uber Technologies, Inc., 67 F.4th 550 (3d Cir. 2023), instructive.⁸

In Singh, the Third Circuit examined whether the section 1 exemption applied to the class of Uber drivers, stating that the key question was whether engagement with interstate commerce was central to their work. Id. at 560. The Third Circuit determined that the plaintiffs had failed to show that the Uber drivers’ infrequent interstate trips were, on the whole, an essential part of their job. Id. While the plaintiffs focused on the “141.5 million total interstate trips” Uber drivers made from 2010 through May 2020, the Third Circuit found that this statistic could not shed much light on the drivers’ typical duties noting that “[a] high number of interstate trips does not mean that a class of workers is engaged in interstate commerce for purposes of section 1 if a small proportion of the class is responsible for most of the trips.” Id. “Rather, to be central to a class of workers’ job description, engagement with interstate commerce must be typical of the work that class members generally do.” Id. The fact that 35.1 percent of the most active Uber drivers had made at least one interstate trip did not help the plaintiffs’ case; instead, these numbers revealed that, even amongst the most active Uber drivers, a majority – nearly 65 percent – had never made a single interstate trip. Id. On such evidence, the Third Circuit found that it was easy to conclude that interstate trips were not a typical feature of the class members’ work. Id.

While certain pharmacy locations have a greater number of interstate deliveries and certain Stallion couriers make a greater number of interstate deliveries than others, the case law directs us to examine the class as a whole. As a whole, Stallion has presented evidence that less than ten percent of its deliveries crossed state lines after leaving a pharmacy. Hence, more than ninety percent of deliveries do not cross a state line after leaving a pharmacy. Furthermore, the percentage of Stallion couriers who make deliveries over state lines is greater than ninety percent. McCatty has presented no evidence to dispute these numbers. Additionally, a review of the Transportation Services Agreement between Stallion and the Massachusetts, Maryland, Connecticut, and Indiana Pharmscript show that, as a class, the Stallion couriers were engaged in intrastate commerce.⁹ While the Transportation Agreement related to the Maryland Pharmscript location identifies a significant number of out of state customers, twenty-three out of a total of fifty customers, this location appears to be an outlier. (Docket #32-1 at 31-32). The Transportation Agreement related to the Massachusetts Pharmscript location identifies twenty-three nursing facilities to which couriers might make deliveries, with only one being located out of state in New Hampshire. (Docket #17-1 at 18). Likewise, out of the fifty nursing facilities to which the couriers might make deliveries from the Indiana Pharmscript location, only four were out of state in Kentucky. (Docket #17-4 at 18-19). The Transportation Services Agreement for the Connecticut Pharmscript location lists thirteen possible delivery locations, all in Connecticut. (Docket #17-3 at 18). Hence, the court finds that McCatty has failed to demonstrate that the couriers whom Stallion connected with pharmacies to deliver pharmaceutical products were engaged in interstate commerce. While certain pharmacies may have more interstate deliveries than others, this appears to be a happenstance of geography and does not alter the intrastate transportation function performed by Stallion couriers. See Capriole v. Uber Techs., Inc., 7 F.4th 854 (9th Cir. 2021) (noting that percentage of Uber drivers who cross state lines are likely influenced by fact that many interstate trips are performed by drivers who live close to state borders, especially on the East Coast and finding that “interstate trips that occur by happenstance of geography do not alter the intrastate transportation function performed by the class of workers.”) (quoting Rogers v. Lyft, Inc., 452 F. Supp. 3d 904, 916 (N. D. Cal. 2020)).

2. Integrated Interstate Deliveries

McCatty asserts that, even if this court finds that the Stallion couriers as a class did not themselves transport goods across state lines so as to be engaged in interstate commerce, they qualify for the section 1 exemption because the goods which they transported were part of an integrated interstate journey. (Docket #32 at 15). In so arguing, McCatty asserts that the facts of the instant case are exactly like those in the Amazon delivery scenario in Waithaka v. Amaon.com, Inc. (Id. at 16).

In Waithaka, the First Circuit considered whether so called “last mile” drivers were exempt from the FAA pursuant to section 1. 966 F.3d at 13. The First Circuit concluded that these “delivery workers who haul goods on the final legs of interstate journeys are transportation workers ‘engaged in ․ interstate commerce,’ regardless of whether the workers themselves physically cross state lines” and, therefore, the FAA did not govern the dispute. Id. at 26.

The First Circuit refined this holding in Immediato v. Postmates, Inc., when it addressed whether couriers who deliver take-out meals from local restaurants as well as comestibles and sundries from local grocery stores were engaged in interstate commerce for purposes of the exemption of section 1. 54 F.4th at 72. The First Circuit held that the section 1 exemption can apply to workers who are engaged in the interstate movement of goods “even if they are responsible for only an intrastate leg of that movement,” but only if their work is “a constituent part of that movement, as opposed to a part of an independent and contingent intrastate transaction.” Immediato, 54 F.4th at 77. The First Circuit noted that “interstate movement necessarily terminates when those goods arrive at the local manufacturer or retailer (as local manufacturing and retailing have not been understood to be ‘in’ interstate commerce).” Id. The First Circuit determined that the plaintiffs did not belong to a class of workers engaged in interstate commerce because, although they transported goods, they did so as part of separate intrastate transactions that were not themselves within interstate commerce. Id. at 78. The fact “[t]hat the delivered items may have once travelled across state borders does not alter the equation.” Id. The First Circuit determined that the interstate journey terminated when the goods arrived at the local restaurants and retailers to which they were shipped. Id. Customers’ purchases of those meals and goods from local businesses and the deliveries of those purchases were part of an entirely new and separate transaction. As the First Circuit wrapped up succinctly, “[i]n a nutshell, couriers making deliveries from local businesses are transporting goods as part of local intrastate commerce.” Id. In so holding, the First Circuit differentiated the Postmates couriers from the Amazon last-mile drivers. The First Circuit noted that in Waithaka, customers bought goods directly from Amazon, which orchestrated the interstate movement of those goods and arranged, as part of the purchase for their delivery directly to the customer. Id. Hence, “[t]hat local delivery was [ ] integral to the interstate movement such that the goods remained within the flow of interstate commerce until arriving at the customer's doorstep. Id. In contrast, the interstate transport of the goods delivered by the Postmates couriers had terminated when the goods arrived at local restaurants and grocery stores. Id.

Here, the evidence shows that, through Stallion, nursing facilities place ad hoc orders with the pharmacies for prescription drugs and medications. (Docket #28 at 20). The pharmacies then prepared these orders by utilizing their bulk inventory. (Id.). Stallion then arranged for the couriers to deliver the prescription drugs from the pharmacies to local nursing facilities. (Id.). This court finds that the interstate journey of the pharmaceuticals terminated when they reached the pharmacies. Unlike those deliveries at issue in Waithaka, the ultimate recipient of the pharmaceuticals was unknown at the time they began their interstate journey. Instead, these pharmaceuticals formed part of a general inventory from which subsequent intrastate orders were filled. See Fraga, 61 F.4th at 241 (distinguishing goods that began their interstate journey intended for specific retail stores from goods shipped interstate to a “general inventory” and then delivered later when it is “determine[d] that the part is required”). Hence, McCatty has failed to demonstrate that he is exempted from the FAA under section 1.

McCatty argues that the Ninth Circuit's holding in Carmona Mendoza v. Domino's Pizza 73 F.4th 1135 (9th Cir. 2023), requires a different result. In Carmona Mendoza, the Ninth Circuit found that Domino's drivers who deliver ingredients to Domino's California Franchisees were exempt from the FAA under section 1 because they were engaged in interstate commerce. Id. These ingredients were bought from out-of-state suppliers and then delivered to Domino's Southern California Supply Chain Center. Id. at 1136. At the Supply Center, Domino's employees reapportion, weigh, and package the ingredients for delivery to local franchisees but do not otherwise alter them. Id. The plaintiff drivers, Domino's employees, then delivered the ingredients in response to orders from Domino's California franchisees. Id. The franchisees do not order these ingredients until they arrive at the warehouse. Id. at 1138. The Ninth Circuit held that because the goods in this case were inevitably destined from the outset of their interstate journey for Domino's franchisees, it matters not that they briefly paused that journey at the Supply Center. Id. In so holding, the Ninth Circuit also found that, unlike the products in Immediato which were transformed from their constituent ingredients into meals before the plaintiff drivers delivered them, the ingredients were unaltered from the time that they arrived in the Supply Center until they were delivered to franchisees. Id. In the instant case, there is no indication that the pharmaceuticals were bound for a particular purchaser. Instead, nursing facilities placed ad hoc orders with the pharmacies which were filled by the pharmacies’ general inventory. This court is compelled by First Circuit case law to find that the couriers delivering these orders were not engaged in interstate commerce as the pharmaceuticals’ interstate journey ended when they were delivered to the general inventory of the pharmacies.

IV. CONCLUSION

For the foregoing reasons, I order that the motion to dismiss and compel arbitration (Docket #25) be ALLOWED.

FOOTNOTES

1.   Motions to compel arbitration are non-dispositive and, accordingly, the proper vehicle for a U.S. Magistrate Judge's findings and conclusions is an order and not a report and recommendation. Patton v. Johnson, 915 F.3d 827, 832 (1st Cir. 2019).

3.   “[T]he Section 1 exemption does not apply exclusively to contracts of ‘employees,’ but rather to ‘agreements to perform work,’ including those of independent contractors.” Waithaka v. Amazon.com, Inc., 966 F.3d 10, 17 (1st Cir. 2020) (quoting New Prime Inc. v. Oliveira, 586 U.S. 105, 121, 139 S.Ct. 532, 202 L.Ed.2d 536 (2019)).

4.   McCatty does not dispute that a valid arbitration agreement exists or that the claims asserted in the complaint are within its scope. Nor does he dispute whether Stallion, a nonsignatory, is entitled to invoke the Arbitration Agreement as an intended third-party beneficiary thereto. Additionally, he does not dispute that the collective/class action should be struck if the motion to compel arbitration is granted.

5.   The affidavits of the Stallion couriers who made deliveries out of the Massachusetts Pharmscript location also reveal that at least three couriers who resided in Rhode Island ran what is referred to as “double routes.” (Docket #32-4-5). These couriers were regularly instructed by Stallion to transport and store pharmaceutical products designated for return in Massachusetts at their residence until they returned to the Massachusetts Pharmscript location for their next route. (Id.). McCatty has failed to show that more than a miniscule number of Stallion couriers engaged in such a practice.

6.   McCatty has not submitted evidence of how many Stallion couriers transported products from either the Massachusetts or Maryland Pharmscript locations in total.

7.   The court notes that McCatty has not argued that the deliveries completed in June of 2022 would be atypical of deliveries during the relevant time period.

8.   This decision was subsequently vacated, but for “strictly typographical” errors and was replaced with a new decision; the judgment was unchanged. Singh v. Uber Techs., Inc., 67 F.4th 550 (3d Cir. 2023).

9.   In his opposition to the motion, McCatty states that he has copies of some, but not all, of the contracts between Stallion and the various Pharmscript locations. (Docket #32 at 4 n.4). While McCatty argues that he has provided a sufficient evidentiary basis to deny Stallion's motion, he asserts that he has at least alleged enough to warrant further discovery into the issues. (Id.). While presumably McCatty's statement relates to the contracts between Stallion and the remaining Pharmscript locations, he does not indicate the contracts to which he does not have access. The court will not allow further discovery on such a bare showing of need.

Hennessy, UNITED STATES MAGISTRATE JUDGE